### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-20516

UNITED STATES OF AMERICA, Plaintiff–Appellee,
v. GILBERT BARRY ISGAR; VINCENT WALLACE ALDRIDGE; TORI ELYSE ALDRIDGE, Defendants–Appellants.

Appeals from the United States District Court for the Southern District of Texas

Before OWEN and HAYNES, Circuit Judges, and LEMELLE, * District Judge. PRISCILLA R. OWEN, Circuit Judge: This case arises f

r om a mortgage f

raud scheme. At the conclusion of a jury trial, Vincent Wallac e A l d r idge and Tori Elyse Aldridge (the Aldridges), and Gilbe r t Barry Isgar (collectively, Defendants) were convicted of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349, ai d i n g a n d abetting w ire fraud, in violation o f 18 U.S.C. §§ 2 and 1343, conspiracy to engage in money launderin g , in violation of 18 U.S.C. § 1956(h), and aiding and abetting m oney laundering under 18 U.S.C. § § 2 and 1957. The Defendants appeal their convictions. We affirm. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D January 13, 2014 Ly l e W . Cay ce Clerk

* D is trict Jud ge of

the Eas tern D is trict of Louis iana, s itting by d es ignation. Case: 11-20516 Document: 00512498628 Page: 1 Date Filed: 01/13/2014No. 11-20516 I T h e Defendants’ c onvictions a rose out of the sale of nine newly constructed town homes in the Memorial Park area of Houston, Texas. The p r ope rties at issue were in a development c alled “Maxie Village” and were b uilt by Waterford Custom Homes. Isgar owned 50% of Waterford. The closings were c onducted by the First Southwestern T itle Company (FSW), w hich was operated by the Aldridges and for whom Vincent Aldridge was also a fee attorney doing business as A ldridge & A ssociates. The Aldridges were both authorized signers on A ldridge & Associates’ Interest Only Lawyers Trust Account (IOLTA). The Aldridges recruited three “straw purchaser s ” to buy eight of the townhomes. V incent Aldridge purchased the ninth. T he s traw purchasers were individual s w ho wanted to invest in real estate and were told that they would receive $10,000 f

or e ach property they purchased; that they would not have to pay the mortgages because tenants would b e found t o l ease the properties; and that after a pproximately one year, the residences w ould be resold and the straw purchasers might r eceive additional money at that t i m e . T hese straw purchasers provided t he Aldridges with their respective names, social security numbers, and income information. The Aldridges then used the a ccurate names and social security numbers, combined w ith f alsified information a bout income, assets, and i ntent to use the p roperty as a primary residence, to submit fraudulent loan a pplications to lenders. T he false repre s e n tations that each purchaser would be residing in the home purchased permitted the Aldridges to obtain 100% financing. Isgar i nflated the sale p r i c e o f t h e p roperties through falsified construction invoices and amendments to the sales contracts. The lenders approved loans to purchase the properties a t these inflated practices. When t he lenders wired the loan amounts to FSW, disbursements were made to Isgar as payment for the

2 Case: 11-20516 Document: 00512498628 Page: 2 Date Filed: 01/13/2014No. 11-20516

properties. H owever, other disbursements were made t o Aldridge & Associates’ IOLTA as well as to Superb Con s t r u c t i o n that were not disclosed on the settlement statement to the lenders, as required b y the Department of Housing and Urban Development (HUD). The Unite d S t a t e s m a i l , i n c l u d i n g i n t e r s t a te commercial carriers, and wire communications were used to execute this scheme. Loan documents traveled

across state l ines by f acsimile, m ail and email. Loan proc e e d s w e r e wire transferred from the lenders’ banks to FSW. Also involved in the scheme were Alvin Eiland, a mortgage b roker, and his employee, Gary Robinson. Robinson assisted Vincent Aldridge in fo r ming Superb Construction, which laundered proceeds from these transactions. Both Eiland a nd Robinson have pled guilty to conspiracy to c o mmit w i r e f raud and money laundering and are not parties to this appeal. A federal grand jury returned a 19-count indic t m e n t charging the Aldridges with conspiracy to commit mail a n d wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, 1349 (Count 1), aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 2, 1343 (Counts 2-12), conspiracy t o e ngage i n money laundering, in violation of 18 U.S.C. § 1956(h) (Count 13), a nd a i d i n g and abetting money laundering, in violation of 18 U.S.C. §§ 2, 1957 (Counts 14-19). Isgar was named only in Counts 1 -13. A jury returned a guilty verdict as to all three defendants on all counts. The Defendants appeal th e i r c o n victions on multiple grounds. Each asserts that the evidence is insufficient t o s upport a conviction. The Aldridges challenge subject matter jurisdiction and venue. They further contend that they

are entitled to a n ew trial because certain FSW documents should not have been admitted, there was prosecutorial misconduct, and that the c umul a tive errors

3 Case: 11-20516 Document: 00512498628 Page: 3 Date Filed: 01/13/2014No. 11-20516

denied them a fair trial. 1 Tori Aldridge contend s t hat her indictment was constructively amended, and that the district court erre d in the denying her

m o t i o n for new trial and request for a n evidentiary h earing. She a lso claims ineffective assistance of counsel. Vincent Aldridge appeals his sentence and the amount of restitution owed. II Each of the Defend a n t s has challenged the s ufficiency of the evidence. “Our review of the s ufficiency of th e e vidence is h ighly d eferential to the verdict.” 2 “The relevant question is whether, after viewing the evidence in the light m o s t f

avorable to the p rosecution, a ny rational trier of f act could have found the essential elements of the c rime bey o nd a r easonable doubt.” 3 “[A]ll reasonable inferences a nd credibility choices [ are] m ade in support of a conviction.” 4 “Our review is thus limited t o whether t he jury’s verdict was
re a s o n a b l e , not whether we believe it t o be correct.” 5 “Finally, ‘ [i]t is not necessary that the evidence exclude every reasonable hypothesis of i nnocence or be wholly i n c o n s istent with every conclusion except that o f g uilt,’ and any conflict in the evidence must be resolved in favor of the jury’s verdict.” 6

1 O n D ecem ber 3, 2012, V incent f iled a m otion in this court s eek ing to ad op t Tori’s brief

. O n D ecem ber 18, 2012, T ori filed a letter s eek ing to ad op t Vincent’s brief

. U nd er Fed eral Rule of Ap p ellate P r o c e d u re 28( I) , a d ef end ant m ay ad op t another’s argum ents “only” if thos e claim s are not f act s p ecif

ic. U ni ted Sta tes v . Ca ntu- Ra m i rez , 669 F .3d 619, 632 n. 4 ( 5th Cir. 2012) , cert. deni ed , 133 S. Ct. 247 ( 2012)

. Accord ingly, w e treat all argu m e n t s r a i s e d b y Tori and Vincent that d o not concern the p articular f acts of their cas es as joint argum ents

.
2 U ni ted Sta t e s v . M

o r e no- G onz a l ez , 662 F. 3d 369, 372 ( 5th Cir. 2011) ( internal quotation m ark s om itted )

.

3 Id. (alteration om itted )

.
4 U ni ted Sta tes v . A si bor , 109 F. 3d 1023, 1030 ( 5th Cir. 1997)

.
5 U ni ted Sta tes v . Wi l l i am s , 264 F. 3d 561, 576 ( 5th C ir. 2001)

.
6 M oreno- G onz a l ez , 662 F. 3d at 372 ( alteration in original) ( citation om itted ) ( quoting U ni ted Sta tes v. La

ge , 183 F. 3d 374, 382 ( 5th Cir. 1999) )

. 4 Case: 11-20516 Document: 00512498628 Page: 4 Date Filed: 01/13/2014No. 11-20516 A Tori Aldridge a r g u e s that there was insufficient evidence that a prior conspiracy between her and Eiland or her and Robinson existed and a sserts that

no reasonable j ury could f i n d that a conspiracy existed after March 26, 2005. She c o ntends t h a t i n every t ransaction with Eiland or Robinson, she received only the closing fees disclosed on the HUD form. S he points to evidence that she suggests e xonerates her. A review of the record, however, r eveals ample evidence from which the j ury could have r e a s o n a b l y c o n cluded t hat Tori Aldridge acted with the intent to further the fraudulent scheme. At trial, Robinson test i f i e d that T o ri A ldridge prepared the falsified paperwork concerning a straw purchaser’s income and intent to use the property

as a primary r e sidence. He explained that he received and returned the paperwork to her. One of the straw purchasers, Shawn Stevens, testified that in the documents he signed in purchasing two of the Maxie V illage town homes less than one m onth apart, T ori Aldridge attested that each would be used as his primary residence when in fact, neither would be o r a ctually was used as a residence by him. Tori A ldridge notarized documents that stated Stevens had face-to-face meetings with her when t hat w as false, and s h e attested that signatures and initials o n loan documentation were those of Stevens, though Stevens t estified that those signatures a nd initials were forgeries. One witness stated that Tori Aldridge had expressly d irected her to draft a statement lying about her income. Tori A ldridge’s signature was o n this f alsified paperwork. A witness from one of the lenders also verified that Tori Aldridge had signed the closing paperwork, attesting to the accuracy of the information provided t herein. There was sufficient e vidence f r om which a jury could conclude that Tori Aldridge was an active participant in the fraudulent scheme.

5 Case: 11-20516 Document: 00512498628 Page: 5 Date Filed: 01/13/2014No. 11-20516 B I s g a r a r g u e s t h a t the Government failed to present sufficien t e v i d e n c e t h a t he was a knowing participant in the fraud. He cites United States v. Curtis 7 for the proposition that t he G o vernment was required to present proof that the actual sale prices of the properties were i n f l a t e d in the form of either an appraisal r eport or a ppraiser testimony and contends that in the absence of such proof, this c o u r t must reverse. Isgar also contends that his o wn damaging statement that the values of these propertie s w e r e s l i g h t l y i n flated is insufficient to meet the Government’s burden. Isgar is mistaken t hat Curtis requires proof of an appraisal to support a conviction for conspiracy t o commit mail and w ire fraud. 8 In fact, i n C urtis , we emphasized that “circumstantial evidence m ay establish the existenc e o f a conspiracy, as wel l as an individual’s voluntary participation i n it.” 9 We also noted t hat a “ defendant’s knowing and voluntary participation in the conspiracy

can e ven be e stablished solely on t he basis of the testimony of a coconspirator

. . . so long as that testimony is not incredible as a matter of law.” 1 0 Here, there was c ircumstantial evide n ce supporting Isgar’s knowing part i cipation in the fraud. R obinson testified that Isgar’s role in the scheme required that I sgar “ be okay with inflating the p rice.” F BI Agent Robert McCallum also testified that Isgar handled t h e d a y - t o -day business affairs of

7 635 F. 3d 704 ( 5th Cir. 2011)

.
8 Curti s , 635 F. 3d at 718 (“The G overnm ent w as not sp ecif ically obligated to p rove that the values s tated in the ap p rais al rep orts w e r e f a ls if ied or inf

lated

. Rather, it had to p rove that Curtis m ad e s om e k ind of a f als e or f raud ulent m aterial m is rep res entation in s ervice of a schem e to d ef

raud

. ”)

. An overt act w as required in Curti s becaus e the G overnm ent charged the d ef end ant w ith cons p iracy und er 18 U

. S. C. § 371. O ur d is cus s ion, then, was focus ed on the overt act, not on the ap p rais al its elf

.

9 Id. at 719 ( alteration om itted )

.
1 0 Id. ( alteration in original) ( internal quotation m ark s om itted )

. 6 Case: 11-20516 Document: 00512498628 Page: 6 Date Filed: 01/13/2014No. 11-20516

Waterford and that Isgar had signed the d i sbursements t o the Aldridge’s IOLTA and to S uperb C onstruction. Isgar’s own statements support the inference that he was a knowing participant. I sgar explained to A g e n t M c C a llum that “the sales prices of the properties had b e e n raised” and supported in the documentation with construction repair invoices or amendments added t o t he sales contracts giving the purchaser a $60,000 allowance to pay the contractor of the purchaser’s choice to make repairs. There was evidence t h at $60,000 in construction repairs or upgrades to the Maxie Village newly co n s t r ucted town homes was unnecessary. Isgar admitted to FBI agents that with regard to t he town h ome Isgar sold to Vincent Aldridge, I s g ar made a d i s b ursement to Aldridge the day after the sale closed, and Isgar said that he knew that he should not have done so. Isgar also participated in disbursements to Superb Construction Company, the entity formed by Vincent A ldridge but opened under Robinson’s name. No legitimate purpose for the disbursements to Superb Construction Company was evident. Isgar w as also a licensed real estate agent. Though h e knew that the value of the units was inflated, he always received his full asking price and no negotiation with buyers w a s n e c e ssary. H is company, Waterford, made approximately $30,000 to $60,000 in profit on each sale. Isgar’s contention that this statement was i nsufficient to demonstrate his knowing participation g o es t o the weight of the evidence, and “[t]he jury retains the sole authority to weigh any conflicting evidence.” 1 1 T he jury here could have reasonably concluded from I sgar’s acknowledgment of the inflated prices as well

as from the other circumstantial evidence t hat I sgar knowingly participated in the scheme.

1 1 U ni ted Sta tes v . G ra nt , 683 F. 3d 639, 642 ( 5th Cir. 2012) ( internal quotation m ark s om itted ) )

. 7 Case: 11-20516 Document: 00512498628 Page: 7 Date Filed: 01/13/2014No. 11-20516 C Vincent Aldridge challenges the sufficiency o f the evidence underlying his convictions for conspir a c y to commit money laundering under 18 U.S.C. §§ 1956(h) and 1957. The jury was instructed t h at the transfers of money from FSW to the A ldridges’s IOLTA account had to involve “proceeds” o f an unlawful activity, and the district c ourt instructed the jury that “proceeds” was limited to the “profits,” not “gross receipts,” of unlawful activity. Aldridge argues that the money deposite d i n the IOLTA a ccount was used to p ay two of the straw purchasers and to make mor t g age payments on the t own homes and that accordingly, the funds were u sed to further the conspiracy a nd w ere not profits retained by him. Vincent Aldridge relies on United States v. Santos

. 1 2 In Santos , a plurality of the Supreme Court held that the term “proceeds” under § 1956 m eant “profits” rather than “gross receipts,” at least in part to p r e v e n t merger issues. 1 3 “The concept of merger is i mpli c a t e d when a defendant is convicted under two criminal statutes for what is actually a single crime; t hat is, convicted under the money laundering statute for essentially the s ame conduct that constitutes the conduct of t h e ‘unlawful a ctivity’ upon which the money laundering count is premised.” 1 4 T hus, Vincent argues, just as Santos held that t h e f unds from which the c o sts o f t he illegal scheme itself must be paid a re not “profits,” the evidence in the i nstant case of funds transferred from F S W i n to his IOLTA likewise do not r epresent “ pro f i t s ” b e c ause this money w as used to pay the expenses incurred in executing the wire fraud scheme.

1 2 553 U

. S. 507 (2008)

.
1 3 Sa ntos , 553 U. S. at 515.

1 4 U ni ted Sta tes v . Kennedy , 707 F. 3d 558, 563 ( 5th Cir. 2013)

. 8 Case: 11-20516 Document: 00512498628 Page: 8 Date Filed: 01/13/2014No. 11-20516

We rejected this arg u m e n t i n United States v . Kennedy

. 1 5 There, we addressed a simil a r m o r t gage f raud s cheme and held t hat t he subsequent disbursements o f mortgage loan f unds from the title company to the defendants’ various s hell companies c onstituted different conduct underlying a different crime. 1 6 We r easoned that wire fraud was c ompleted when t h e l e n d e r transmitted funds and that su b s e q uent expenditures to make down payments

on n e w l y a cquired mortgages and to make bonus payments t o borrowers to encourage them to invest again were the use of profits to assist the defendants in committing new crimes of wire fraud. 1 7 We concluded that payments of this nature “could not be anything but [the use of] profits.” 1 8 In the p resent case, t he Government present e d evidence that Isgar inflated the sales prices of the properties thr o u g h f r audulent construction invoices and amendments to the sales contracts such that the subs e q u ent disbursement of the amounts in exce s s o f t h e actual price c o nstituted only profits. Second, the Government also demonstrated that the $10,000 payments t o s t raw purchasers were given at least in part to encourage t hem t o in v e s t again, and that the dis b u r s e m e n ts to both the Aldridges’s IOLTA and Superb Construction were unsupported by c o n s i deration b ut were i n stead direct payments of profits from the fraudulent scheme. A ccordingly, just as in Kennedy , there was sufficient evidence from which a jury could have reasonably found that the transferred f unds were profits, and thereby formed t he basis for Vincent Aldridge’s money laundering convictions.

1 5 707 F. 3d 558 ( 5th Cir. 2013)

.
1 6 See Kennedy , 707 F. 3d at 560- 62, 566- 67.

1 7 Id

. at 566- 67.

1 8 Id. at 567. 9 Case: 11-20516 Document: 00512498628 Page: 9 Date Filed: 01/13/2014No. 11-20516 III A Tori A ldridge contends that the district court lacked subject matter jurisdiction over the wire fraud counts. She ar g u e s t h at, because state law required the wir e transmissions at issue in t h is case, the transmissions c ould not have been unlawful. She asserts, “federal jurisdiction is improper as a matter of law.” We disagree. Our review of s ubject matter jurisdiction is de n ovo. 19 “ S u b j e ct matter jurisdiction

. . . is straightforward in t he crimina l c o n t e x t .” 2 0 Under 18 U.S.C. § 3231, “[t]he district courts of the United States have original jurisdiction

. . . of all offenses a g a i n s t the laws of the United States.” 2 1 T o i nvoke this jurisdictional grant, “an indictment need only charge a defend a n t with an offense against the United States in l anguage similar to that used by the relevant statut e . ” 22 Defects i n the indictment, moreover, such as insufficient factual allegations, d o n ot deprive t he c ourt of j urisdiction. 2 3 As the S upreme Court has clarified, “a district court has jurisdiction o f a ll crimes c o gnizable under the authority o f the United States and the o bjection that the indictment does not charge a crime against the U nited States goes only to the merits of the case.” 2 4 The counts in the indictment against T ori Aldridge closely t r ack the

1 9 U ni ted Sta tes v . H

a z lew ood , 526 F. 3d 862, 864 (5th Cir. 2008)

. 2 0 U ni ted Sta tes v . Scruggs , 714 F. 3d 258, 262 ( 5th Cir. 2013)

.
2 1 18 U

. S. C. § 3231.

2 2 Scruggs , 714 F

. 3d at 262 ( internal quotation m ark s and citations om itted )

.
2 3 See i d. at 263 ( “Even though a [ s ubs equent Sup rem e Court cas e] m ight have rend ered the i n s tant inf

orm ation f

a ctua l l y ins uf f icient, it d id not d ives t the d is trict court of s ubject
m atter juris d iction over the cas e. ” ( em p has is in original, internal quotation m ark s om itted )) ; U ni ted Sta tes v . Scruggs , 691 F

. 3d 660, 668- 69 ( 5th Cir. 2012) ( reaching a s im ilar conclus ion)

.

2 4 U ni ted Sta tes v . Cotton , 535 U

. S. 625, 630- 31 ( 2002)

. 10 Case: 11-20516 Document: 00512498628 Page: 10 Date Filed: 01/13/2014No. 11-20516

language o f the c orresponding statutes. T he district court p o s sessed subject matter jurisdiction. 2 5 Tori A l d r idge also c ontends t hat venue was improper in t he Southern District of Texas for t he wire fraud charges. However, she has waived any objection to venue. Although a defendant may challenge venue in a motion for judgment for acquittal p ursuant to Federal R ule of Criminal Procedure 29, 2 6 the Aldridges’ motion failed to r aise any v enue issue. Therefore, this issue was not properly preserved for appellate review. 2 7 B Each of the Aldridges asserts that the d i strict court abused i ts discretion in admitting FSW documents concerning t he r eal estate transactions a t issue. 2 8 The Aldridges ma i n t a i n t h a t these documents were not admissible under the business records exception, w hich permits “the admission of ‘ records of regularly conducted activity’” so l ong a s certain conditions a re met, 2 9 because the witness offering the records had never been e mployed a t F SW and could not testify as to its business practices. The witness presenting the foundation f or t he admission of a record need

2 5 See S cruggs , 691 F. 3d at 668 ( hold ing that there w as no juris d ictional d ef ect w hen the language of the charging d ocum ent “track [ ed ] the statutory language ” even though “the f acts p rof

f ered at the p lea hearing [ w ere] ins uf f icient to e s t a b lis h that” the d ef end ant com m itted the crim e)

.

2 6 U ni ted Sta tes v . Ca rreon- Pa la ci o , 267 F

. 3d 381, 392- 93 ( 5th Cir. 2001)

.
2 7 Ca rreon- Pa l a ci o , 267 F. 3d at 392- 93 ( “In s ituations w here ad equate allegations are m a d e b u t t h e im p rop riety of venue only becom es ap p arent at the clos e of the governm ent’s cas e, a d ef

end ant m ay ad d res s the error by objecting at that tim e, and thus p res erve the is s ue f or ap p ellate review

. ”)

.

2 8 See, e. g. , U

ni ted Sta tes v . H

a l e , 685 F. 3d 522, 538 ( 5th Cir. 2012) ( p er curiam ) , cert. deni ed , 133 S. C t. 5 5 9 ( 2012) ( “We review evid entiary rulings regard ing the ad m is s ion of evid ence only f

or an abus e of d is cretion. ” ( internal quotation mark s om itted ) )

.
2 9 U ni ted Sta tes v . N

ed , 637 F. 3d 562, 569 ( 5th Cir. 2 0 1 1 ) ( p er curiam ) ( alteration in original) ( quoting F E D

. R. E V I D

. 803( 6) )

. 11 Case: 11-20516 Document: 00512498628 Page: 11 Date Filed: 01/13/2014No. 11-20516

not b e the “author of t he record or be able to personally a ttest to its accuracy.” 3 0 Instead, because this exception hinges on the “trustworthiness of the records,”

a court does not abuse its discretion by admitting documents from a c u stodian that never worked for the employer that c reated t he d ocuments if that c u stodian explains “how she came to p ossess them a nd how they were maintained.” 3 1 Here, the witne s s t e s t i fied, based on a n affidavit from a Commonwealth Land Title Insurance employee, that when FSW ceas e d to exist, Commonwealth, with which FSW had previously had a title insurance agreeme n t , filed suit and obtained entry. Commonwealth took possession of all of FSW’s guaranty files, including those at i ssue in t h is appeal. C ommonwealth maintained t he files and did not remove any documents. T he Commonwealth employee’s affidavit stated that F SW’s files appeared t o contain the t ype of records usual l y found in guaranty files that a title company maintains in t he ordinary c ourse o f business. The trial wi t n e ss’s employer, Fidelity National Title Group, acquired Commo n w e a lth and i mmediately placed FSW’s files in storage. Based on this court’s precedent, the district court had sufficient evidence of trustworthiness to admit FSW’s documents on this basis. In a ny event, the admission of the FSW files was harmless error in light of the other evidence in the record of the fraud. We t herefore do n ot reach V incent Aldridge’s arguments regarding the district

c ourt’s alternative conclusion that admission of the FSW d ocuments w a s permissible under the residual hearsay exception. C Tori Aldridge argues that the prosecutor e ngaged in m isconduct that requires reversal b ut recognizes that becaus e t h e r e was no contemporaneous

3 0 Id

. at 570.

3 1 E. g. , U

ni ted Sta tes v . M

orrow , 177 F. 3d 272, 295 ( 5th Cir. 1999) ( per curiam )

.

12 Case: 11-20516 Document: 00512498628 Page: 12 Date Filed: 01/13/2014No. 11-20516

objection at trial, our review is for p lain e rror. 3 2 Aldridge must show an error, that w as plain, and t ha t a f f e cted h er substantial rights, i.e. , “affected the outcome of t he district court proceedings. ” 3 3 She a sserts that the prosecutor intentionally used a “dormant” guaranty f ile that p e rtained to matters outside the statute of limitations. This resulted , Aldridge asserts, in (1) allowing the indictment of a n otherwise unindictable case, (2) creating a prior conspiracy in order to manufacture her recruitment of the b uilder, ( 3 ) s p o n soring perjury known to the prosecu t i o n team, (4) creating false unity o f purpose by its introduction of false evidence and testimony that Tori A ldridge received money

w h e n t h e e vidence was to the contrary, and (5) a conviction based on false information. The documents at issue were used by the prosecution in connection with evidence of the purchase of t own homes b y S h awn Stevens, one of the straw purchasers. Tori Aldridge also contends t h at the prosecutor fail e d t o correct Stevens’s mi s s t a t e m ent on d irect examination as to the amount o f money disbursed to T ori A ldridge in conne c t i o n w ith Stevens’s purchase of these properties, and contends that the p rosecutor “ doubled down on the uncorrected, false testimony.” When asked by the district court a s to t h e a c c uracy of S t e v e n s ’ s s t a t e m e n t s about proceeds disbursements, the p r o s e c u t o r s a i d , “ I t h i n k it is [accurate], Your Honor. I will double check on that for you.” We hold t here is no plain e rror. First, with regar d t o t h e d o cuments at issue, t here was considerable ev i dence regarding a conspiracy in which Tori Aldridge participated, including testimony from S tevens in which he confirmed that h e was a purchaser of properties in Maxie Village and the facts surrounding his invo l vement. We a re not persuaded t hat there is a r easonable probability

3 2 U ni ted Sta tes v . G ra ci a , 522 F. 3d 597, 599- 600 ( 5th Cir. 2008)

.
3 3 Puckett v . U

ni t ed Sta tes , 556 U

. S. 129, 135 ( 2009)

.

13 Case: 11-20516 Document: 00512498628 Page: 13 Date Filed: 01/13/2014No. 11-20516

that the j ury would have failed to convict Tori A ldridge had the g overnment not used the d ocuments at issue. 3 4 Second, Steve n s ’ s misstatement regarding disbursements o f loan proceeds merely transposed t he disbursement of proceeds from two different properties, and the disbursement worksheet noting the correct amounts was a dmitted into evidence. Even assuming that the first two elements of plain e rror r eview are met, Tori Aldridge cannot meet her burden of showing that the error affected the outcome of the trial. Lastly, t he p rosecutor’s comment to the t rial judge regarding t he accuracy of Stevens’s testimony does not constitute a false, material stateme n t such that an error, let alone a plain error, occurred. 3 5 D Tori Aldridge asserts that the district court erred by constructively amending her indictment. Because she failed to contemporan e o u s l y o bject to the alleged constructive amendment of h er indictment, we review her objection for plain error. 3 6 “The Fifth Amendment guarantees t hat a criminal d efendant will be tried only on c h a r g e s a l l eged in a grand jury i n d ictment.” 3 7 “A jury instruction constructively amends an indictment if it permits the jury to convict the d efendant upon a factual basis that effectively modifies an essential element of the crime charged.” 3 8 Specifically, Aldridge alleges that t he district c ourt impermissibly allowed

34 S ee Kyl es v . Whi t l ey , 514 U

. S. 419, 433 ( 1995) ( d ef ining m ateriality in t e r m s o f a “reas onable p robability” of a d if f erent outcom e)

.
3 5 See Ta ssi n v. Ca i n , 517 F. 3d 770, 777- 7 8 ( 5 th Cir. 2008) ( m eas uring p ros ecutorial
m is cond uct accord ing to “the extent to w hich the tes tim ony mis led the jury” ( citing N a p ue v . Il l i noi s , 360 U

. S. 264, 270 ( 1959) ) )

.

3 6 Uni ted Sta t es v . Bohuchot , 625 F. 3d 892, 896- 97 (5th Cir. 2010)

.
3 7 U ni ted Sta tes v . D i xon , 273 F. 3d 636, 639 ( 5th Cir. 2001)

.
3 8 Id. ( internal quotation m ark s om itted ). 14 Case: 11-20516 Document: 00512498628 Page: 14 Date Filed: 01/13/2014No. 11-20516

evidence of her role as a broker a n d of her fiduciary duties to s upport an alternative theory o f honest services under § 1346 rather t h a n t h e indicted charges of conspiracy to commit mail a nd wire fraud under §§ 1341, 1343, and 1349. However, the district court specifically i n s tructed the jury t hat any violation of fiduciary duties or regulations was not to be considered a violation of c riminal law and charged the jury to consider such facts only “in determining whether the d efendants had the required intent to violate the crim i n a l law as charged in the i ndictment.” 3 9 Accordingly, we find no error, plain o r otherwise. E We reject Tori A ldridge ’ s a s sertion that the district court abused its discretion by denying her motion for new trial and request for an evid e ntiary hearing. 4 0 Beca u s e h e r motion w as not b ased on newly discovered evidence, Aldridge h ad to file her motion withi n 1 4 d a y s a fter the jury reached its verdict. 4 1 However, she filed her m otion on O ctober 2 8, 2011—over nine months after the j ury reached a v e r d i c t

. Because A ldridge d oes not argue that her failure to act stemmed f rom excusable neglect, 4 2 the district court did not abuse its discretion in finding that her motion was untimely. 4 3 F We d o not consider the merits o f Tori’s ineffective a ssistance of counsel claim. “Sixth Amendment claims of ineffective a ssistance of counsel s hould not

3 9 See Weeks v . A ngel one , 528 U

. S. 225, 234 (2000) ( “A j u r y i s p res um ed to f ollow its ins tructions

. ”)

.

4 0 See, e. g. , U

ni ted Sta tes v . M

unoz , 150 F. 3d 401, 413 ( 5th C ir. 1998) ( “We review the d enial of a m otion f

or new trial f

or abus e of dis cretion. ”)

.
4 1 F E D

. R. C R I M

. P. 33( b)

.
4 2 F E D

. R. C R I M

. P. 45( b) ( 1) ( B)

.
4 3 S ee, e. g
. , D ot s o n v . C l a rk Equi p . Co. , 805 F

. 2d 1225, 1229 ( 5th Cir. 1986) ( “[ T] he d is trict court d i d n o t a b u s e its d is cretion in ref us ing to cons id er [the ap p ellant’s ] untim ely s up p lem ent to the original new trial m otion

. . . . ”)

. 15 Case: 11-20516 Document: 00512498628 Page: 15 Date Filed: 01/13/2014No. 11-20516

be l itigated on direct a ppeal, unless they were previously presented to t he trial court.” 4 4 It is only in “rare cases in which the record a llows a r eviewing court to fairly evaluate the m erits of the claim” t h at we will consider such a claim. 4 5 S u c h i s not the case here. A lthough Tori A l d ridge’s current counsel arg u e d below that trial counsel was ineffective, he did not seek a hearing on t hat basis. Accordingly, the record is undeveloped as t o trial c ounsel’s “conduct and motivations.” 4 6 We therefore deny t his claim w i thout prejudice to c o llateral review. 4 7 G Tori Aldridge argues that cumulative error denied her a fair trial. She cites to all the alleged errors discussed above to support this theory, as well as to her arguments concerning the s u f f i ciency of the e vidence. “The cumulative

error d o c t r i n e p r o v i d e s f o r r e v e r s a l w h e n a n a ggregation of non-reversible errors, i.e. , plain and harmless errors th a t d o n ot individually warrant reversal, cumulatively deny a defe ndant’s constitutional right to a fair trial.” 4 8 This doctrine is only to be used in “rare i nstances , ” a n d “ [r]eversal is justified ‘only when errors so fatally infect the trial that they v i olated the trial’s fundamental fairness.’” 4 9 As discussed above, none of Tori Aldridge’s a llegations amount to

error. Accordingly, there is no justification f or reversal under the cumulative

4 4 U ni ted Sta tes v . A

gui l a r , 503 F. 3d 431, 436 ( 5th Cir. 2007) ( p er curiam )

.
4 5 Id. ( internal quotation m ark s om itted ).

4 6 S ee i d

. (d enying inef f ective as s is tance of couns el claim w ithout p rejud ice becaus e the d is trict court had not held a hearing and the record d id “not p r o vid e s uf f icient d etail about trial couns el’s cond uct and m otivations to allow th i s court to m ak e a f air evaluation of the
m erits of [ the ap p ellant’s ] claim ”)

.

4 7 See i d. ( dis p os ition of inef f ective as s is tance of

couns el claim )

.
4 8 Uni ted Sta t es v . Cerv a ntes , 706 F. 3d 603, 619 ( 5th Cir. 2013) ( citing U ni ted Sta tes v . D el ga do , 672 F. 3d 320, 343- 44 ( 5th Cir. 2012) ( en banc) )

.
4 9 Id. ( quoting D el

ga do , 672 F. 3d at 344)

.

16 Case: 11-20516 Document: 00512498628 Page: 16 Date Filed: 01/13/2014No. 11-20516

error doctrine. 5 0

IV Vincent Aldridge raises two issues regarding his s e n t e nce. H e first asserts that 6 3 months of imprisonment, which w as within t h e p r o perly-calculated Guidelines range of 63 to 78 months, was unreasonable. Because Aldridge failed to o b j e c t i n the district court on t his b asis, we review for plain error. 5 1 “A discretionary sentence imposed within a properly calculated guidelines range is presumptively r easonable.” 5 2 “A d efendant’s disagreement with the propriety of the sentence imposed does not suffice to re b u t t he presumption of reasonableness t h at attaches to a within-guidelines sentence.” 5 3 Because Aldridge’s claim that the nature and circumstances of his offense warrant a lower sentence under 18 U.S.C. § 3553(a) asserts nothing more than disagreement with his sentence, he fails to show plain error. 5 4 Aldridge argues that the district court abused its discretion i n calculating the a mount of restitution owed pursuant t o t h e Mandatory Victims Restitution Act. 5 5 A district court may generally “award restitution to victims of the offense, but the restitution award c an encompass only those l osses t hat resulted directly

5 0 Id. ( “Allegations of non- errors d o not p lay a role in cum ulative error analys is since there is nothing to accum ulate. ”)

.

5 1 S ee, e. g
. , U

ni ted Sta tes v . Rui z , 621 F. 3d 390, 398 ( 5th Cir. 2010) ( p er curiam )

.
5 2 Id

. at 398; see a lso Uni t ed Sta t es v . G om ez - H errera , 5 2 3 F

. 3d 554, 565- 66 ( 5th Cir. 2008)

.
5 3 Rui z , 621 F. 3d at 398.

5 4 See, e. g
. , U

ni ted S ta tes v . Rodri guez , 523 F .3d 519, 526 ( 5th Cir. 2008) ( ref us ing to d is turb pres um ption of reas onablenes s that a t t a c h e d to a w ithin- guid elines s entence w hen d is trict court cons id ered but rejected argum ents f or a non- guid elines s entence)

.
5 5 See U ni ted Sta tes v . A rl edge , 553 F. 3d 881, 897 (5th Cir. 2008)

. 17 Case: 11-20516 Document: 00512498628 Page: 17 Date Filed: 01/13/2014No. 11-20516

from the offense f

or which the defendant was convicted.” 5 6 Aldridge specifically challenges the inclusion of $140,000 payable t o Mortgage Investment Lending Associates for the transaction involving 5529 C ornish because “there is nothing t h a t indicates that the transaction involved any criminal participation [ b y Vincent].” However, Aldridge does not contest that the transaction was illegal

or that he participated in the transaction a s an FSW employee. In U nited States

v. Arledge , 5 7 this court held in similar circumstances that when a transaction is shown t o be f

raudulent and t he defendant was involved as the a ttorney of record, the district court does not abuse its discretion by awarding restitution based on l o s s e s resulting f

rom the fraud for which the defendant was convicted. 5 8 W e therefore hold that the district court did not abuse its discretion in calculating this restitution award. * * * For the foregoing reasons, we AFFIRM the Defendants’ convictions and Vincent Aldridge’s sentence in all respects.

5 6 Id

. at 898.

5 7 553 F. 3d 881 ( 5th Cir. 2008)

.
5 8 A rl edge , 553 F. 3d at 898. 18 Case: 11-20516 Document: 00512498628 Page: 18 Date Filed: 01/13/2014